Delhi High Court
Mohd. Haroon vs New Delhi Municipal Council on 2 May, 2016
Author: Rajiv Sahai Endlaw
*IN THE HIGH COURT OF DELHI AT NEW DELHI
% Date of decision: 2nd May, 2016
+ W.P.(C) No.11060/2015 & CM No.28621/2015 (for stay).
MOHD. HAROON ..... Petitioner
Through: Mr. Ritesh Kr. Chaudhary, Adv.
Versus
NEW DELHI MUNICIPAL COUNCIL ..... Respondent
Through: Mr. Vivek B. Sahrya, ASC with Mr.
Mananjay Mishra, Adv.
CORAM:-
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
1. The petition impugns the refusal dated 28th July, 2015 of the
respondent New Delhi Municipal Council (NDMC) to allow the petitioner
use of Show Window no.3 in Regal Subway near Palika Bazar and seeks a
mandamus to the respondent NDMC to return to the petitioner the said
Show Window.
2. Notice of the petition was issued and though the respondent NDMC
availed of time to file counter affidavit but no counter affidavit has been
filed till now.
3. Be that as it may being of the prima facie view that the petition is
misconceived and the petitioner is not entitled to the relief, the counsel for
the petitioner has been heard.
4. The counsel for the petitioner, on the right of the petitioner to the
said Show Window being enquired, states that the petitioner was granted a
Licence with respect thereto vide Deed of Licence dated 21st December,
W.P.(C) No.11060/2015 Page 1 of 6
1989 and on further enquiry as to what was the term of the licence states
that the same was for a period of five years renewable on the same terms
and conditions on increase in licence fee by 10%. On further enquiry
whether the licence was renewed after the period of five years thereof was
over in December, 1994, the counsel states that though there was no
renewal of licence but the respondent NDMC in the year 2004 had raised a
monetary demand on the petitioner and which was disputed by the
petitioner and the respondent NDMC in the year 2004 sealed the said
Show Window; the petitioner filed W.P.(C) No.2978/2008 in this Court
and which was disposed of vide order dated 23rd July, 2008 recording the
stand of the respondents to waive off the entire amount of interest for the
break up period and by stipulating that upon the petitioner paying the
demanded amount, the respondents would deliver back the Show Window
to the petitioner. It is stated that the respondent NDMC in pursuance
thereto on 5th September, 2008 delivered back the Show Window to the
petitioner.
5. The genesis of the present dispute is the repair/renovation work of
the subway undertaken for Common Wealth Games in the year 2010 and
for which the said Show Window was again taken back by the respondent
NDMC from the petitioner.
6. The counsel for the petitioner has argued that the respondent
NDMC at the time of taking back the Show Window had „promised‟ to the
petitioner to return the same and the petitioner changed his position on the
basis of the said promise by continuing to pay licence fee even after
possession had been taken from him. It is further contended that though
W.P.(C) No.11060/2015 Page 2 of 6
the work of the subway was to be completed in August, 2010 itself but
went on endlessly and was completed only in the year 2013 but thereafter
also the Show Window was not returned to the petitioner.
7. The petitioner filed W.P.(C) No.1217/2015 in this Court and which
was disposed of vide order dated 9th February, 2015 with a direction to the
respondent NDMC to dispose of the representation of the petitioner and in
pursuance whereto vide communication dated 28th July, 2015 the
representation of the petitioner for return of the Show Window has been
refused on the grounds that there is no such Show Window in the
renovated subway and that no promise for return thereof was made.
8. The counsel for the petitioner invokes the law relating to
promissory estoppel and has in Court handed over extracts of Spencer
Bower "The Law Relating to Promissory Estoppel by Representation",
Mahabir Auto Stores Vs. Indian Oil Corporation (1993) 3 SCC 752 and
State of Madhya Pradesh Vs. Orient Paper Mills Ltd. (1990) 1 SCC 176.
9. I have however enquired from the counsel for the petitioner as to
how the principle of promissory estoppel is applicable to the present facts.
Supreme Court in State of Himachal Pradesh Vs. Ganesh Wood
Products (1995) 6 SCC 363 held that the doctrine of promissory estoppel
was evolved to protect a promisee who acts on the faith of a
promise/representation made by promisor and alters his position even
though there is no consideration for the promise and even though the
promise is not recorded in the form of a formal contract. It was further
held that the doctrine of promissory estoppel cannot however be put on a
higher pedestal than the written contract between the parties and a
W.P.(C) No.11060/2015 Page 3 of 6
representation made or undertaking given in a formal contract is as good
as, if not better than, a mere representation. It was yet further held that
where there is a contract between the parties containing certain terms but
the government resiled from the contract and terminated the same, the
promisee will then have to file a suit for specific performance of the
contract in which case the Court will decide, having regard to the facts and
circumstances of the case and the provisions of the Specific Relief Act,
whether the plaintiff should be granted specific performance of the
contract or only a decree for damages for breach of the contract.
10. The present is a case where the rights which the petitioner is
claiming / asserting are governed by Licence Deed and once there is a
contract in writing the relationship of the parties is to be governed thereby
and the question of promissory estoppel does not arise. The said Licence
Deed was admittedly for a period of five years only and which is long
back over and was otherwise also as per Clause 25 thereof revocable at
any time and did not vest a right even for a period of five years in favour
of petitioner. Applying the principles of Specific Relief Act, 1963, the
licence is not renewable / enforceable. A Division Bench of this Court
recently in the Pradeshiya Industrial & Investment Corporation of U.P.
Ltd. Vs. M/s Pacquik Industries Ltd. 2016 SCC Online 531 reiterated that
the doctrine of promissory estoppel being an equitable doctrine must yield
when the equity so requires and the government should not be held bound
by a promise not enforceable in law. Reference may also be made to the
judgment of this Court in Kaveri Infrastructure P. Ltd. Vs. N.D.M.C. ILR
(2007) I Delhi 1080 holding that for promissory estoppel, the petitioner
W.P.(C) No.11060/2015 Page 4 of 6
has to demonstrate that there was a definite representation by the State
agency which led the petitioner to alter his position by acting on such
representation and suffer detriment; the principles of promissory estoppel
were held not applicable merely from the unilateral act of the petitioner
without any representation on the part of the respondent.
11. The actions of the respondent NDMC, to which attention is invited
by the counsel for the petitioner, can at the most show that the respondent
NDMC, notwithstanding the deed of licence having expired and not been
renewed, consented to the petitioner continuing as a licencee but cannot
confer in the petitioner any rights in excess of that mentioned in the deed
of licence.
12. Thus the sole ground urged of promissory estoppel has no
applicability to the facts of the case.
13. In this view of the matter, the judgments cited by the counsel for the
petitioner are of no relevance.
14. Else the petitioner has not disclosed any right to the said Show
Window. The counsel for the petitioner at this stage states that the Licence
Deed did not envisage the petitioner handing over the Show Window to
the respondent NDMC for the purposes of repair of the subway and the
very fact that the petitioner returned it shows the bona fides of the
petitioner and the petitioner is thus entitled to the relief.
15. The counsel for the respondent NDMC in this regard has drawn
attention to Clause 23 of the Licence Deed reserving the right of
respondent NDMC to carry out changes in subway.
W.P.(C) No.11060/2015 Page 5 of 6
16. Even otherwise, even if the petitioner though not required to has
once handed over the said Show Window, unless the petitioner discloses
any right with respect to the Show Window no order as claimed can be
granted.
17. Similarly the fact that the petitioner continued depositing the licence
fee till August, 2010 would be of no avail and same would at best entitle
the petitioner to refund of the amount so paid. It was a unilateral act of the
petitioner and does not constitute a representation of the respondent
NDMC.
18. The counsel for the respondent NDMC states that the petitioner is
also in arrears of over a sum of Rs.5 lacs.
19. There is no merit in the petition.
Dismissed.
No costs.
RAJIV SAHAI ENDLAW, J.
MAY 02, 2016
„pp/gsr‟..
